City of Indianapolis v. Hawkins, 103 N.E. 10

City of Indianapolis v. Hawkins

103 N.E. 10

Ind.

1913

Check Treatment

Spencer, C. J.

The original proceedings in this case were had under §§8722-8725 Burns 1908, Ac.ts 1905 p. 219, Acts 1907 p. 563, pursuant to which the city of Indianapolis, through its Board of Public Works, caused a certain sewer to be constructed and assessed a part of the cost thereof against certain lands belonging to appellees. Appellees’ remonstrance against such assessment was overruled, whereupon they filed a verified petition in the Marion Superior Court, in which petition they showed that the amounts assessed against them were excessive and asked that appraisers be appointed to review such assessments. Appraisers were duly appointed, and in their report said assessments were materially lessened. This report was received by the Marion Superior Court over the objection of appellants, and this appeal followed.

In their various assignments of error appellants seek (1) to have reviewed certain rulings made by the judge of the Marion Superior Court during the proceedings, and (2) to question the constitutionality of §8725, supra.

Appellees have filed a motion to dismiss this proceeding on the ground that no appeal is allowed in actions of this character and that this court is therefore without jurisdiction to determine the several questions which appellants *384seek to present. Appellants concede that no appeal is permitted from the action of the hoard of appraisers hut insist that this appeal is properly taken to determine certain questions of procedure incident to the action of the superior court in appointing such appraisers and in receiving their report.

According to the definition approved in Robertson v. State, ex rel. (1887), 109 Ind. 79, 82, 10 N. E. 582, “The jurisdiction of a court means, the power or authority which is conferred upon a court, by the Constitution and laws, to hear and determine causes between pai*ties, and to carry its judgments into effect.” But the right to exercise such power does not authorize a court to reach out and assume jurisdiction in each and every case to which its attention may be called. This power to act judicially is limited to that given to courts by the law of the land and cannot be conferred by the consent or request of parties in cases where the court would otherwise be without it. It is the law which gives jurisdiction and it must follow as a fundamental rule, applicable to all cases, that such jurisdiction can be invoked only by some method known to the law.

In our practice the familiar and, in all cases to which it applies, the exclusive method of presenting a question to an appellate tribunal, is by an appeal. This proceeding, as a remedy of review, was unknown to the common law and is statutory in origin. With .certain exceptions which we need not here consider, it may be taken only from a final judgment, order or decree rendered in a judicial proceeding, and then only in case an appeal is permitted in such proceeding. In the case at bar, the proceeding is special in character and, since no appeal is expressly granted, none may be taken from any action or decision of the tribunal conducting such proceeding. Randolph v. City of Indianapolis (1909), 172 Ind. 510, 88 N. E. 949, and cases *385there cited. A fundamental principle underlying the right of appeal in all cases is, that in the absence of express statutory provision to the contrary, the decision appealed from, must have been made by a tribunal or officer vested with judicial authority, and while acting in a judicial capacity. Stockton v. Yeoman (1913), 179 Ind. 61, 100 N. E. 2; Potts v. Bennett (1894), 140 Ind. 71, 39 N. E. 518; Board, etc. v. Davis (1893), 136 Ind. 503, 36 N. E. 141, 22 L. R. A. 515; Farley v. Board, etc. (1891), 126 Ind. 468, 26 N. E. 174; Bower v. Cook (1869), 39 Ga. 27; Ex parte Evans (1905), 72 S. C. 547, 52 S. E. 419; Phelps County v. Bishop (1870), 46 Mo. 68; Sanders v. St. Louis, etc., R. Co. (1906), 116 Mo. App. 614, 92 S. W. 736; Auditor-General v. Pullman, etc., Car Co. (1876), 34 Mich. 59.

Note. — Reported in 103 N. E. 10. See, also, under (1) 11 Cye. 659; (2) 11 Cyc. 661, 670, 673; (3, 4) 2 Cyc. 517; (5) 2 Cye. 519, 580; (6) 2S Cye. 1183; (8) 2 Cye. 533; 8 Cyc. 798. As to what orders and judgments are appealable, see 20 Am. St. 173.

The judge of the Marion Superior Court was acting in an executive or administrative capacity in this proceeding and the statutory right of appeal does not exist as to such acts. City of Indianapolis v. State, ex rel. (1909), 172 Ind. 472, 88 N. E. 687; Nalle v. City of Austin (1907), 101 Tex. 48, 104 S. W. 1050; McKimmey v. McKimmey (1875), 52 Ala. 102.

Since appellants have no proper foundation for an action in review, this court has no jurisdiction to pass on the constitutionality of §8725, supra, in this proceeding. Farley v. Board, etc,, supra; Nalle v. City of Austin, supra.

Appeal dismissed.